Mark Daniels, N.H.A. v. State of Florida, Department of Health

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D20-1395
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MARK DANIELS, N.H.A.,

Petitioner,

v.

STATE OF FLORIDA, DEPARTMENT
OF HEALTH,

Respondent.
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Petition to Review Non-Final Agency Action—Original
Jurisdiction.

September 3, 2020

PER CURIAM.

Petitioner seeks review of a nonfinal emergency order
suspending his nursing home administrator license pursuant to
section 120.60(6), Florida Statutes (2019). Specifically, he claims
that (1) the emergency suspension order lacks sufficient detailed
allegations demonstrating an immediate serious danger to the
public health, safety, or welfare; and that (2) the suspension of his
license pending formal disciplinary action is not necessary to
protect the public interest because less restrictive remedies would
be sufficient to prevent the alleged harm. We disagree with
Petitioner’s first claim but agree with the second. Accordingly, the
petition is denied in part and granted in part.
 Petitioner initially claims that the emergency suspension
order lacks sufficient detail to demonstrate an immediate serious
danger to the public health, safety, or welfare. However, the order
recites specific facts spanning several days demonstrating that
Petitioner failed to implement proper screening measures; failed
to provide staff and residents with proper personal protective
equipment (PPE); failed to provide adequate training on the use of
PPE and hygiene practices to prevent the spread of COVID-19;
failed to isolate COVID-19 positive patients from other residents;
failed to implement proper isolation protocols for COVID-19
patients; refused to participate in briefings with the Department’s
nursing team; dismissed the team’s recommendations on proper
procedures; and obstructed the team’s attempts to educate staff on
proper procedures. The order finds that the result of these failures
caused the spread of COVID-19 in the nursing home facility over
which he exercised supervisory authority as the administrator of
the facility. Contrary to Petitioner’s assertions, the face of the
order demonstrates an immediate serious danger to the public
health, safety, or welfare requiring emergency action on
Petitioner’s license. See Cameron v. State, Dep’t of Health, 1D20-
1410 (Fla. 1st DCA Sept. 3, 2020); Rehab. Ctr. at Hollywood Hills,
LLC v. State Agency for Health Care Admin., 250 So. 3d 737, 745–
46 (Fla. 1st DCA 2018). For that reason, we deny the petition in
part.

Petitioner also asserts that the emergency suspension of his
license pending formal disciplinary action is not necessary to
protect the public interest because less restrictive remedies would
be sufficient to prevent the alleged harm. Although the emergency
suspension order found that there was no restriction that would
adequately protect the public from Petitioner’s continued practice
as a nursing home administrator, the order contains no
explanation as to why the less restrictive remedies listed in section
120.60(6) would be inadequate to address the alleged harm.
Therefore, that portion of the order is deficient. See Cameron;
Lohstreter v. State Dep’t of Health, 45 Fla. L. Weekly D1792, D1793
(Fla. 1st DCA July 27, 2020); Failer v. State, Dep’t of Health, 139
So. 3d 359, 363 (Fla. 1st DCA 2014); Nath v. State Dep’t of Health,
100 So. 3d 1273, 1276 (Fla. 1st DCA 2012).

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 Accordingly, we GRANT the petition for review in part, QUASH
the portion of the emergency order suspending Petitioner’s license
as a nursing home administrator, and REMAND to the Department
for further proceedings consistent with this opinion. The petition
is otherwise DENIED.

RAY, C.J., and BILBREY and JAY, JJ., concur.

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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jeffrey J. Molinaro, Christopher M. David, and Joshua M. Salmon
of Fuerst Ittleman David & Joseph, Miami, for Petitioner.

Sarah Young Hodges, Chief Appellate Counsel, Florida
Department of Health, and Major Thompson, Assistant General
Counsel, Tallahassee, for Respondent.

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